Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

A good deed punished

In retrospect, I should have let myself stay fired.

Randy was a fairly volatile guy, to say the least.  He'd been charged with obstructing justice and obstructing official business, and I'd been appointed to represent him.  I'd gotten the discovery, and the cop's version was that they were on the lookout for car break-ins, they saw Randy's son Larry peering into cars, and when he saw them, he ran to the porch of Randy's house, where he was standing next to a pitbull when they approached.  When they ordered him to show his hands, he told the pitbull to attack them.  The pitbull charged down the steps, then abruptly turned around and bolted into the house, along with his owner.  The cops tried to grab Larry as he was going in the door, and somehow everybody wound up in the house, with the cops trying to arrest Larry, the dog barking, Randy telling the cops that his son was a good boy, and the officers claiming that while doing this he physically interfered in their arrest of Larry.  So Randy got arrested, too, and Tasered for his troubles.

I try to remain objective, and not become too emotionally invested in my cases.  Sometimes that's good, but sometimes clients read objectivity as indifference to their situation.  That's how Randy took it when I talked to him about the case at the first pretrial.  After three minutes in which I did not jump up and down and fully agree with him that the case was complete bullshit, he told me he wanted another lawyer.  My dismay at being discharged so abruptly was tempered by the fact that in those three minutes Randy had conveyed to me that he wasn't pleading to anything; my termination precluded the likelihood that I'd wind up trying the case for the $500 maximum that the county pays for assigned counsel for 4th and 5th degree felonies.

Enter my co-counsel, Don, stage left.  Don was representing the son, who was charged with assaulting a police officer and obstructing justice.  I'd known Don for ages, and he's a great guy, and he does get emotionally invested in his cases.  Sometimes that's good, and sometimes it isn't.  It wasn't in this case, at least for me, because Don talked to Randy, quickly convincing him of Don's belief in the righteousness of their common cause, and also that I could be trusted.  So Randy just as quickly unfired me.

Which was too bad, as it turned out.  At least for me.

The prosecutor in the case, who we'll call Jessica, is a hard negotiator, and Randy was adamant about not pleading to anything, but we still might have been able to work something out if it had just been Randy in the case; his record was minimal -- nothing in about twenty years, and so was his involvement.  But his son was on probation at the time of this offense, and Jessica wanted him to plead to a felony.  Don wasn't having any of that, so after the case took its normal labryinthine course over the next six months, off we went to trial.

Surprisingly, voir dire doesn't take forever.  Keep in mind that there's two defendants, each of whom get four peremptories, which means the State gets the same amount, sixteen in all:  we could have spent two days throwing people off the jury for no reason.  We didn't; it took us about three hours to seat the jury.  Not that that wasn't painful.  Jessica had just seen The Avengers, a movie that was partially shot in Cleveland, and decided to work that in to her presentation, trying to explain the concept of circumstantial evidence using an analogy involving Iron Man, the Hulk, and the destruction of mid-town Manhattan.  I had no clue what she was talking about, and neither did the jury.  Neither did she, she confessed later, although "it sounded good when I practiced it in the mirror this morning."  I was the third person to do voir dire -- Don's client was the "A" defendant -- and I made it short, because I sensed that half the jurors were ready to shove a fork in their eye to get out of having to listen to yet another bloviation on reasonable doubt and burden of proof.

The good thing about the case is that it was short; the only State witnesses were the two cops.  The first was a younger guy, and he was very good, because he came across as somebody who was just trying to tell what happened.  He admitted when he wasn't sure about things, he wasn't evasive, he didn't try to play word games.  The second cop was older, and he was a different story.  He was obviously playing to the jury, and the phrase "too clever by half" was conceived with him in mind.  We caught him in several consistencies in his testimony and his report, and instead of just 'fessing up and admitting that he got it wrong, he came up with convoluted explanations of why the two were in harmony.  I talked to the jury afterwards, and they didn't like him.

We debated whether to put Randy on the stand, but he blew up three minutes into the prep session and started yelling about racist cops, which was sufficient to dissuade us of the wisdom of that course.  We rested, did the argument and instruction, and sent the jury out to deliberate at noon on Thursday.

They came back with a question at three.  The judge had told them repeatedly that they had all the evidence they were going to get, so naturally the question was whether they could have the "official" transcripts.  The judge sent a message back that there were no transcripts, official or otherwise, and told us to stick around, because oftentimes a jury reaches a verdict right after a question like that.  Not so here.  At about 4:30, the judge sent the bailiff in to find out whether the jury wanted to continue deliberating or go home for the night.  She came back and told us, "they can't make up their minds.  Some want to stay, some want to go home."  Well, that's sign pointing toward eventual unanimity.  "Jeez, I hope we don't have to try this again," Jessica mumbled.  "If we do, and you use that Avengers analogy again, I'm going to hit you with a shovel."  She gave me a look.  "Hey, I'd be doing you a favor," I said.  She thought about it, then nodded in agreement.

The jury eventually did go home.  The judge told us to be there at 9 the next morning, because they'd have a question, and sure enough, they did:  can we have the police report?  Shut up, the judge explained.

About 3:30 that afternoon, I called the bailiff.  "Please tell me that they came back with a verdict, and you forgot to call me."  No, she told me; in fact, the jury asked about coming in on Saturday, and the judge was thinking about it, which means that I'd have to hang around the courthouse on Saturday, too.  Shut up, I explained.

Fortunately, the jury came back about a half hour later:  not guilty on the assault, guilty of everything else.  Of course, by knocking out the assault, that meant that "everything else" was a misdemeanor, and the two counts against Randy would merge.  So I had the misdemeanor that I probably could have had all along.

It gets worse.  I'd argued to the jury that if they found there wasn't an assault, the rest of the case went away:  the arrest was for the assault, and if there wasn't an assault, there wasn't a legal basis for the arrest, and if there wasn't a legal basis for the arrest, there couldn't be any obstruction for interfering with the arrest.  Not technically true -- you can have inconsistent verdicts -- and obviously the jury didn't buy it.  But the judge did.  After he sent the jury out, he told us that we might have an acquittal here, and he wanted us to submit briefing on the issue of whether the convictions could stand in light of the acquittal on the assault.

Good.  So now, in addition to spending three days in trial on a case for which I'll get paid at a rate of about $15 an hour, if I'm lucky, I get to write a brief on my client's conviction for a second-degree misdemeanor. 

I'm thinkinig that in a previous life, I must have done something really, really bad.

Search

Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions